## Facts

- Federal prosecutors charged Mark Stephen Forrester and Dennis Louis Alba with offenses tied to operating a large MDMA (Ecstasy) manufacturing laboratory.
- Investigators obtained court permission to install a pen-register analogue (“mirror port”) on Alba’s PacBell Internet account.
- The mirror port captured non-content metadata: e-mail to/from addresses, IP addresses of websites visited, and total volume of data sent or received; it did not capture message contents or specific web pages viewed.
- Before trial, Forrester moved to represent himself.
- At the self-representation hearing, the district court warned Forrester about the dangers of proceeding without counsel but did not inform him of the charge and misstated his sentencing exposure as “10 years to life” when the potential term was “0 to 20 years.”
- A jury convicted both defendants on all counts in the Southern District of California; both appealed.

## Issues

1. Whether Forrester’s waiver of the right to counsel was knowing and intelligent when the court failed to state the charge and materially misstated the potential sentence.
2. Whether obtaining e-mail to/from addresses, visited website IP addresses, and total data volume through a mirror port constituted a Fourth Amendment search requiring a warrant.

## Decision

- The court held Forrester’s Faretta waiver was not knowing and intelligent because he was not informed of the charge and was given a materially inaccurate description of sentencing exposure.
- The court reversed Forrester’s conviction and sentence and remanded for further proceedings.
- The court held the mirror-port collection of addressing and traffic data was constitutionally indistinguishable from a pen register and therefore was not a Fourth Amendment search.
- The court rejected Alba’s motion to suppress based on the mirror-port surveillance and otherwise affirmed his conviction, remanding only for limited sentencing correction.

## Legal Principles

- A defendant may proceed pro se only after a knowing and intelligent waiver of counsel; the court must ensure the defendant understands the nature of the charges and the potential penalties, and material misinformation can invalidate the waiver.
- Government acquisition of non-content Internet routing/addressing information (e.g., e-mail to/from fields and website IP addresses) is treated like dialed telephone numbers under the pen-register doctrine and does not constitute a Fourth Amendment search.
- Collection of non-content traffic information such as total transmission volume is treated as analogous to non-content call-related information (e.g., existence and duration) and does not, by itself, trigger Fourth Amendment warrant requirements.

## Conclusion

The Ninth Circuit reversed Forrester’s conviction because his self-representation waiver was invalid due to the court’s failure to identify the charge and its material misstatement of sentencing exposure, but it upheld the constitutionality of collecting Internet addressing and traffic metadata via a mirror port as a non-search under the Fourth Amendment.


United States v. Forrester, 495 F.3d 1041 (9th Cir. 2007)